Weyh v. Boylan

62 How. Pr. 397

• Court: New York Supreme Court
• Decided: February 15, 1882
• Status: Published

Opinion

Barrett, J.

— The only question is whether Michael S. Boylan’s equity of redemption was cut off by the decree. It is conceded that it would have been cut off had his grantor, Felix Boylan, lived. The claim is that because of Felix’s death pendente lite, the equity could be cut off only by making Michael a party. I am unable to perceive why this incident should affect the question. Under section 1671 of the Oode, Michael, as a grantee subsequent to the filing of the lis pendens, is bound by all proceedings in the action to the same extent as if he were a party. The purchaser would read this section as though the words “ unless his grantor shall die before judgment” were added. Felix’s heirs cannot complain, as the equity had been conveyed; nor can the grantee, for the reason above stated. The point made by the purchaser is not that there was no revival, but that the action was not properly revived—it is true against Michael’s personal representatives. But whether the court should proceed by bringing in these personal representatives or the heirs-at-law, or the successor in interest to the equity of redemption, was a question necessarily determined before granting judgment of foreclosure and sale. By that determination all parties are bound; and practically there can be no prejudice, as Michael had frill notice and was made a party as Felix’s administrator. I think the purchaser will get a good title, and that we are not asking him to purchase a law suit nor a doubtful title. Upon the whole the motion to compel him to complete must be granted, but, as the question seems to be new, without costs.